M/S. Kalyr Retail PVT. LTD. Successor In Interest Of M/S. Freeway Clothing Company vs. Commissioner Of Goods And Services Tax, Delhi & Ors.

W.P.(C) 15918/2025& connected matters Page 1 of 11 $~29 & 37 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 31stOctober, 2025 + W.P.(C) 15918/2025, CM APPL. 65094/2025 & CM APPL. 65096/2025 M/S. KALYR RETAIL PVT. LTD. SUCCESSOR IN INTEREST OF M/S. FREEWAY CLOTHING COMPANY .....Petitioner Through: Mr. Rajat Mittal, Mr. Priyanshu & Ms. Krati Agrawal, Advs. versus COMMISSIONER OF GOODS AND SERVICES TAX, DELHI & ORS. .....Respondents Through: Ms. Nancy Jain, Jr. Standing Counsel for R-3 Mr. Sumit K. Batra, Adv. 37 AND + W.P.(C) 16530/2025, CM APPL. 67708/2025 & CM APPL. 67710/2025 M/S. KALYR RETAIL PVT. LTD. SUCCESSOR IN INTEREST OF M/S. FREEWAY CLOTHING COMPANY .....Petitioner Through: Mr. Rajat Mittal, Mr. Priyanshu & Ms. Krati Agrawal, Advs. versus COMMISSIONER OF STATE GOODS AND SERVICES TAX, DELHI & ORS. .....Respondents Through: Ms. Nancy Jain, Jr. Standing Counsel for R-3 Mr. Sumit K. Batra, Adv. CORAM: JUSTICE PRATHIBA M. SINGH JUSTICE SHAIL JAIN Digitally Signed By:DHIRENDER KUMAR Signing Date:04.11.2025 16:33:06 Signature Not Verified W.P.(C) 15918/2025& connected matters Page 2 of 11 Prathiba M. Singh, J. (Oral) 1. This hearing has been done through hybrid mode. CM APPL. 65095/2025 (for exemption) CM APPL. 67709/2025 (for exemption) 2. Allowed, subject to all just exceptions. The applications are disposed of. W.P.(C) 15918/2025, CM APPL. 65094/2025 & CM APPL. 65096/2025 W.P.(C) 16530/2025, CM APPL. 67708/2025 & CM APPL. 67710/2025 3. The Petitioner- M/s. Kalyr Retail Pvt. Ltd. is a proprietorship firm and has filed the present petitions under Article 226 and 227 of the Constitution of India, inter alia, challenging the impugned Show Cause Notices dated 31st May, 2024 and 26th September, 2023 (hereinafter, ‘impugned SCNs’) and the consequent orders dated 01st August, 2024 and 20th December, 2023 passed by the Sales Tax Officer Class II/AVATO, Delhi. 4. Vide the impugned SCNs the demand raised against the Petitioner for the Financial Years 2017-18 and 2018-19 is as under: (i) Demand vide impugned SCN dated 31st May, 2024: Sr. No. Tax Rat e (%) Turnov er Tax Period Act POS (Place of Supply ) Tax Interest Penalty Fe e Othe rs Total Fro m To 1 2 3 4 5 6 7 8 9 10 11 12 13 1 0 0.00 Apr -19 Ma r- 20 SGC T NA 11,989.0 0 10,075.00 10,000.00 0.0 0 0.00 32,064.00 2 0 0.00 Apr -19 Ma r- 20 CGS T NA 11,989.0 0 10,075.00 10,000.00 0.0 0 0.00 32,064.00 3 0 0.00 Apr -19 Ma r- 20 IGS T Other Territo ry 1,04,65,3 51 87,94,336. 00 10,46,535. 00 0.0 0 0.00 2,03,06,222.0 0 Tot al 1,04,89,3 29 88,14,486. 00 10,66,535. 00 0.0 0 0.00 2,03,70,350.0 0 Digitally Signed By:DHIRENDER KUMAR Signing Date:04.11.2025 16:33:06 Signature Not Verified W.P.(C) 15918/2025& connected matters Page 3 of 11 (ii) Demand vide impugned SCN dated 26th September, 2023: Sr. No. Tax Rat e (%) Turnov er Tax Period Act POS (Place of Suppl y) Tax Interest Penalty Fee Other s Total Fro m To 1 2 3 4 5 6 7 8 9 10 11 12 13 1 0 0.00 Jul- 17 Mar -18 CGS T NA 97,631.00 97,631.00 9,763.00 0.0 0 0.00 2,05,025.0 0 2 0 0.00 Jul- 17 Mar -18 SGS T NA 97,631.00 97,631.00 9,763.00 0.0 0 0.00 2,05,025.0 0 Tot al 1,95,262. 00 1,95,262. 00 19,526.0 0 0.0 0 0.00 4,10,050.0 0 5. Additionally, the present petitions also challenges the following Notifications:  Notification No. 56/2023- Central Tax dated 28th December, 2023;  Notification No. 56/2023- State Tax dated 11th July, 2024;  Notification No. 9/2023- Central Tax dated 31st March, 2023, and  Notification No. 09/2023-State Tax dated 22nd June, 2023 (hereinafter, ‘the impugned notifications’). 6. The challenge in the present petition is similar to a batch of petitions wherein inter alia, the impugned notifications were challenged. W.P.(C) No. 16499/2023 titled DJST Traders Private Limited v. Union of India &Ors.was the lead matter in the said batch of petitions. On 22nd April, 2025, the parties were heard at length qua the validity of the impugned notifications and accordingly, the following order was passed: “4. Submissions have been heard in part. The broad challenge to both sets of Notifications is on the ground Digitally Signed By:DHIRENDER KUMAR Signing Date:04.11.2025 16:33:06 Signature Not Verified W.P.(C) 15918/2025& connected matters Page 4 of 11 that the proper procedure was not followed prior to the issuance of the same. In terms of Section 168A, prior recommendation of the GST Council is essential for extending deadlines. In respect of Notification no.9, the recommendation was made prior to the issuance of the same. However, insofar as Notification No. 56/2023 (Central Tax) the challenge is that the extension was granted contrary to the mandate under Section 168A of the Central Goods and Services Tax Act, 2017 and ratification was given subsequent to the issuance of the notification. The notification incorrectly states that it was on the recommendation of the GST Council. Insofar as the Notification No. 56 of 2023 (State Tax) is concerned, the challenge is to the effect that the same was issued on 11th July, 2024 after the expiry of the limitation in terms of the Notification No.13 of 2022 (State Tax). 5. In fact, Notification Nos. 09 and 56 of 2023 (Central Tax) were challenged before various other High Courts. The Allahabad Court has upheld the validity of Notification no.9. The Patna High Court has upheld the validity of Notification no.56. Whereas, the Guwahati High Court has quashed Notification No. 56 of 2023 (Central Tax). 6. The Telangana High Court while not delving into the vires of the assailed notifications, made certain observations in respect of invalidity of Notification No. 56 of 2023 (Central Tax). This judgment of the Telangana High Court is now presently under consideration by the Supreme Court in S.L.P No 4240/2025 titled M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax &Ors. The Supreme Court vide order dated 21st February, 2025, passed the following order in the said case: “1. The subject matter of challenge before the High Court was to the legality, validity and propriety of the Notification No.13/2022 dated 5-7- 2022 & Notification Nos.9 and 56 of 2023 dated 31-3-2023 & 8-12-2023 respectively. Digitally Signed By:DHIRENDER KUMAR Signing Date:04.11.2025 16:33:06 Signature Not Verified W.P.(C) 15918/2025& connected matters Page 5 of 11 2. However, in the present petition, we are concerned with Notification Nos.9 & 56/2023 dated 31-3-2023 respectively. 3. These Notifications have been issued in the purported exercise of power under Section 168 (A) of the Central Goods and Services Tax Act. 2017 (for short, the "GST Act"). 4. We have heard Dr. S. Muralidhar, the learned Senior counsel appearing for the petitioner. 5. The issue that falls for the consideration of this Court is whether the time limit for adjudication of show cause notice and passing order under Section 73 of the GST Act and SGST Act (Telangana GST Act) for financial year 2019-2020 could have been extended by issuing the Notifications in question under Section 168-A of the GST Act. 6. There are many other issues also arising for consideration in this matter. 7. Dr. Muralidhar pointed out that there is a cleavage of opinion amongst different High Courts of the country. 8. Issue notice on the SLP as also on the prayer for interim relief, returnable on 7-3- 2025.” 7. In the meantime, the challenges were also pending before the Bombay High Court and the Punjab and Haryana High Court. In the Punjab and Haryana High Court vide order dated 12th March, 2025, all the writ petitions have been disposed of in terms of the interim orders passed therein. The operative portion of the said order reads as under: “65. Almost all the issues, which have been raised before us in these present connected cases and have been noticed hereinabove, are the subject matter of the Hon'ble Supreme Court in the aforesaid SLP. 66. Keeping in view the judicial discipline, we refrain from giving our opinion with respect to the vires of Section 168-A of the Act as well as the Digitally Signed By:DHIRENDER KUMAR Signing Date:04.11.2025 16:33:06 Signature Not Verified W.P.(C) 15918/2025& connected matters Page 6 of 11 notifications issued in purported exercise of power under Section 168-A of the Act which have been challenged, and we direct that all these present connected cases shall be governed by the judgment passed by the Hon'ble Supreme Court and the decision thereto shall be binding on these cases too. 67. Since the matter is pending before the Hon'ble Supreme Court, the interim order passed in the present cases, would continue to operate and would be governed by the final adjudication by the Supreme Court on the issues in the aforesaid SLP- 4240-2025. 68. In view of the aforesaid, all these connected cases are disposed of accordingly along with pending applications, if any.” 8. The Court has heard ld. Counsels for the parties for a substantial period today. A perusal of the above would show that various High Courts have taken a view and the matter is squarely now pending before the Supreme Court. 9. Apart from the challenge to the notifications itself, various counsels submit that even if the same are upheld, they would still pray for relief for the parties as the Petitioners have been unable to file replies due to several reasons and were unable to avail of personal hearings in most cases. In effect therefore in most cases the adjudication orders are passed ex-parte. Huge demands have been raised and even penalties have been imposed. 10. Broadly, there are six categories of cases which are pending before this Court. While the issue concerning the validity of the impugned notifications is presently under consideration before the Supreme Court, this Court is of the prima facie view that, depending upon the categories of petitions, orders can be passed affording an opportunity to the Petitioners to place their stand before the adjudicating authority. In Digitally Signed By:DHIRENDER KUMAR Signing Date:04.11.2025 16:33:06 Signature Not Verified W.P.(C) 15918/2025& connected matters Page 7 of 11 some cases, proceedings including appellate remedies may be permitted to be pursued by the Petitioners, without delving into the question of the validity of the said notifications at this stage. 11. The said categories and proposed reliefs have been broadly put to the parties today. They may seek instructions and revert by tomorrow i.e., 23rd April, 2025.” 7. The abovementioned writ petition and various other writ petitions have been disposed of by this Court on subsequent dates, either remanding the matters or relegating the parties to avail of their appellate remedies, depending upon the factual situation. All such orders are subject to further orders of the Supreme Court. 8. As observed by this Court in the order dated 22nd April, 2025 as well, since the challenge to the above mentioned notifications is presently under consideration before the Supreme Court in S.L.P No 4240/2025 titled M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax &Ors., the challenge made by the Petitioner to the impugned notifications in the present proceedings shall also be subject to the outcome of the decision of the Supreme Court. 9. However, in cases where the challenge is to the parallel State Notifications, the same have been retained for consideration by this Court. The lead matter in the said batch is W.P.(C) 9214/2024 titled Engineers India Limited v. Union of India &Ors. 10. A brief background of the Petitioner’s case is that, Petitioner had entered into a ‘Business Succession Agreement’ dated 24th July, 2019 with one M/s Freeway Clothing Company, which was a sole proprietary concern of one Mrs. Rimjhim Jaggi. The impugned SCNs and impugned orders Digitally Signed By:DHIRENDER KUMAR Signing Date:04.11.2025 16:33:06 Signature Not Verified W.P.(C) 15918/2025& connected matters Page 8 of 11 relate to the demands raised against the proprietary concern i.e., M/s Freeway Clothing Company. 11. Ld. Counsel for the Petitioner submits that pursuant to the Business Succession Agreement, the Petitioner obtained a fresh Goods and Services Tax Registration (hereinafter, ‘GST registration’) in the name of the new entity. It is further submitted that the GST registration of the erstwhile entity was sought to be cancelled, and an application to that effect was filed by the Petitioner in the year 2023. 12. The said application for seeking cancellation of GST registration was rejected vide order dated 30th May, 2024 passed by Sales Tax Officer Class II/AVATO. 13. Thereafter, SCN was issued on 31st May, 2024. The further submission of ld. Counsel for the Petitioner is that the SCN dated 31st May, 2024 did not come to the notice of the Petitioner and, therefore, no reply was filed by the Petitioner. 14. Ld. Counsel for the Petitioner has sought to explain the conduct of the Petitioner by stating that since the earlier entity had been fully taken over, the GST portal of the said entity was not been accessed regularly, and in fact, the impugned SCNs and the impugned orders came to the knowledge of the Petitioner only in July of 2025. 15. The Court has heard the parties. In fact, this Court in Sugandha Enterprises through its Proprietor Devender Kumar Singh (Supra), under similar circumstances where no reply was filed to the SCN had remanded the matter in the following terms: “6. On facts, however, the submission of the Petitioner in the present petition is that the Digitally Signed By:DHIRENDER KUMAR Signing Date:04.11.2025 16:33:06 Signature Not Verified W.P.(C) 15918/2025& connected matters Page 9 of 11 Petitioner was not afforded with an opportunity to file a reply to the SCN dated 23rd May, 2024 and the impugned order was passed without affording the Petitioner with an opportunity to be heard. Hence, the impugned order is a non-speaking order and is liable to be set aside on the said ground. 7. Heard. The Court has considered the submissions made. The Court has perused the records. In this petition, as mentioned above, no reply to the SCN has been filed by the Petitioner. Relevant portion of the impugned order reads as under: And whereas, the taxpayer had neither deposited the proposed demand nor filed their objections/ reply in DRC-06 within the stipulated period of time, therefore, following the Principle of Natural Justice, the taxpayer was granted opportunities of personal hearing for submission of their reply/objections against the proposed demand before passing